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1 Quarterly Unison Report (Personal Injury) April - June 2013

2 PART 1 OVERVIEW We are pleased to provide a further report for Unison Personal Injury referrals, on this occasion, for the period April to June We have provided within this second report of 2013 details of some of the most noteworthy cases which have settled in the quarter along with case statistics and an analysis of same. We have also noted recent legal developments which may be of interest to you in Part 4. PART 1 HEADLINE STATISTICS PART 2 DETAILED STATISTICS & ANALYSIS PART 3 NOTEABLE CASES PART 4 - RECENT DEVELOPMENTS 4.1. Road Traffic Accident Found Not to Be a Crime of Violence for CICA Application 4.2. Lead Us Not into Temptation Increased Concerns Regarding Drink Driving Accidents 4.3. Courts Reform (Scotland) Bill Access to Justice Restricted for Pursuers 4.4. Case Review: Traditional 6th Year Pranks Not Foreseeable Page 1

3 PART 1 HEADLINE STATISTICS The headline statistics for April to June 2013 are as follows:- 175 cases opened; 101 successful cases concluded; 919, obtained in damages; 9,103 average award in each case; 306, average damages per month; 38% of cases unable to proceed; 192 wills prepared; 126 members were given general free legal advice; 5 members sought criminal law advice or assistance. Of those 175 Personal Injury cases opened, 102 were for female members and 73 for male members. The age brackets for those referrals are as follows:- Under 16 years 1 case years 2 cases years 8 cases years 33 cases 50+ years 131 cases Page 2

6 There were 175 referrals this quarter. The majority of the new cases opened this quarter continue to be in relation to accidents at work. The vast majority of those seeking assistance continue to be women over the age of 50 which is in keeping with the trends of the previous quarter. 53 of the 175 new cases opened this quarter were in relation to trips, slips and falls. The number of referrals for road traffic accident cases was 14 for this quarter. This is slightly less than last quarter, where we had 18 referrals for road traffic accidents, and represents a very small percentage of referrals overall. Members should bear in mind that they will also be entitled to pursue a claim if involved in a road traffic accident whilst cycling. In these cases, as well as sustaining injuries, members are likely to sustain damage to their bicycles and protective clothing and Thompsons can ensure we pursue damages to compensate members for the damage to their property as well as their injuries. The number of referrals for assaults reduced from 34 last quarter to 23. This is likely due to the changes to the CICA scheme which were introduced in November If the assault has not been reported to the police an application to the CICA will not be successful. We are able to pursue a civil claim against employers in some cases as can been seen at Case 3 Thompsons Secure Compensation for Unison Member Assaulted at Work below however it is important to ensure all members are aware that a CICA application will only be successful if the incident has been reported to the police. Your members continue to make good use of their entitlement to free legal advice with 126 members requesting advice during this quarter. This is a significant increase on last quarter when only 75 members sought advice. Likewise members continue to avail themselves of the free will service. During this quarter 192 members requested a free will. We are pleased to note that members are availing themselves of the beneficial services available to them as part of their membership. Page 5

7 PART 3 NOTEABLE CASES (Cases have been anonymised as members have not provided their permission to publish the case details) Case 1 - The Importance of Seeking Expert Legal Advice Following an Accident Your member was involved in a road traffic accident on 20 September She was travelling as the front seat passenger in her husband s vehicle. They were driving through torrential rain when her husband s car aquaplaned and he lost control. This caused the car to veer to the right and then to the left and off the carriageway through a fence and into a hedge before rolling twice and landing upside down in a field. Your member s husband was able to get out of the window of the car however your member required to be cut from the car by the fire brigade. Your member was thereafter taken by ambulance to Ninewells Hospital where she was an in-patient for five days. She sustained a fracture to her right collar bone, two traumatic compression fractures to her lumber spine and bruising to her chest and abdomen. Her injuries caused her to suffer an exacerbation of her pre-existing chronic mechanical low back pain and also caused her to suffer a psychological injury. Your member was employed as an Assistant Technician at Blairgowrie High School by Perth & Kinross Council. She was absent from her work for a period of 14 and a half months. She received full pay for six months, half pay for six months and no pay for two and a half months. She returned back to work on a phased return but could not cope and required a permanent reduction in hours. Her employers were unable to provide this and she was retired on grounds of ill-health at age 58. Our medical evidence suggested that she would have retired at age 63 on the basis of her pre-existing chronic back pain. The Council s pension scheme was favourable to your member and thankfully did not sustain a pension loss. She did however have a claim for past loss of earnings and a third party claim from her employers for recoverable sick pay. Page 6

8 Following the accident your member was approached by her husband s insurers, Direct Line. They arranged rehabilitation treatment and sent her to their own medical expert. On the basis of his report they offered her 10,000 in settlement of her claim. Your member came to us seeking advice on this offer. It was our view at that stage that the offer was not enough and we proceeded to obtain our own medical reports. Once medical evidence was finalised settlement negotiations were entered into and concluded in the sum of 32, Your member was delighted with the settlement which was a good result. This case highlights the importance of seeking expert legal advice from Thompsons if you have been involved in any accident which wasn t your fault. Members should not accept any offer of compensation without seeking legal advice. In this case your member ultimately received over three times the original offer which was made to her when she was dealing with the insurers directly. Case 2 The Importance of Witness Evidence from Colleagues Your member was involved in an accident in the course of his employment on 1 July Your member is employed by East Dunbartonshire Council as a Road Worker. He and his colleagues were in the process of removing a damaged street lighting pole at the time of the accident. They had broken up the concrete surrounding the pole and as your member was walking away from the pole to switch off the machine, the pole fell, hitting him on the head. We intimated a claim on your member s behalf to his employers. The claims handlers acting on behalf of his employers delayed in providing a decision in respect of liability. We believed your member s claim had a reasonable prospect of success therefore we proceeded to obtain medical evidence from a Consultant Orthopaedic Surgeon. Your member sustained a laceration to his scalp and a head injury. He had ongoing symptoms for a period of three months. We sent a copy of the medical report to the claims handlers acting for the Council. They confirmed that they are prepared to settle your member s claim and settlement was agreed in the sum of 1,950. Your member was pleased with the result which was in line with what he would likely receive in any future court action. Page 7

9 This accident could have been easily avoided if the lighting pole was removed the first time the Council inspected it and noticed it was damaged. Instead, a temporary repair was carried out which made the lighting pole unsteady and caused it to fall when your member and his colleagues began to remove it. Witness evidence from your member s colleagues proved very helpful in this case as this helped us prove that the lighting pole had been the subject of a temporary repair which effectively caused it to fall. Case 3 Thompsons Secure Compensation for Unison Member Assaulted at Work Your member was employed as a clerical assistant by Glasgow City Council in a secondary school and was assaulted at work on 25 August On that date your member who was one of the first aiders in the school was asked to attend to a pupil who had been involved in a fight with another pupil. As your member attempted to provide first aid treatment to the pupil he punched her on the left hand side of her face causing her injury. We understand that, prior to this incident, the pupil had been violent towards both staff and other pupils. Notwithstanding the young person s previous violent actions he was allowed to remain in the school and no training was provided to your member to allow her to properly deal with the aggressive behaviour. Claims were intimated to both the Criminal Injuries Compensation Authority (CICA) and your member s employers. The CICA awarded you member 2,500 which was a fair award. With regard to the civil claim we persuaded Glasgow City Council s Legal Advisors to enter in to settlement discussions based on the evidence we had to suggest the pupil had been violent before. We obtained medical reports in relation to both her physical and psychological injuries. Your member sustained soft tissue injuries to her face and also an injury to her neck which settled within 12 months. She also developed an adjustment disorder which settled within 6 months. Page 8

10 The other side initially put forward an offer of 4, which was rejected and this was increased to 4, which was accepted. Your member was not entitled to be compensated by both her employers and the CICA for the same injuries so her award of 2500 was returned to the CICA. This accident could have been avoided if the Council had taken steps to deal with the pupil s previous violent outbursts and provided relevant training to their employees. If members are assaulted in the course of their employment they should seek legal advice from Thompsons. Wherever possible Thompsons will pursue civil claims and submit CICA applications on behalf of Unison members. However members ought to remember that in any circumstance where they have been a victim of crime the incident must be reported to the police to ensure that the CICA will deal with the application in the first instance. Case 4 Potential Impact of the Courts Reform (Scotland) Bill Your member was involved in an accident at work on 28 December She is employed as a Clerical Officer by NHS Greater Glasgow and Clyde based at the Victoria Infirmary. During the course of her employment your member tripped on case notes that were lying on the floor. We recovered supportive witness evidence from your member s colleagues who confirmed, at the time of the accident, there were case notes, files, paperwork and boxes on the floor. We also recovered supportive evidence that confirmed complaints had been made to your member s manager regarding these trip hazards prior to the accident. As a result of the accident your member sustained a fracture to her right big toe. We intimated a claim to the health board and alleged they had breached Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992 which provides that employers should ensure the floor is kept clear of any obstructions which could cause an employee to slip trip or fall. The solicitors acting for the NHS failed to complete their investigations and admit liability in a reasonable time therefore we proceeded to raise a court action in Glasgow Sheriff Court to progress your member s claim quickly. Page 9

11 In the lead up to the final court hearing the other side put forward an offer of 2,000. We considered it to be too low and it was therefore rejected. The case eventually settled prior to the final court hearing for 2500 which was a good result. Your member was pleased with the outcome. This is an example of one of the types of cases which will be adversely affected by the Courts Reform (Scotland) Bill discussed in the article at Part 4 entitled Courts Reform (Scotland) Bill Access to Justice Restricted for Pursuers. Unfortunately the Courts Reform (Scotland) Bill proposes introducing a new lower tier in the Sheriff Court known as Summary Sheriffs. These Summary Sheriffs would hear less complex cases with a value of less than 5,000. It has been suggested that those raising a case in front of the Summary Sheriffs will not be entitled to automatic recovery of their legal expenses. If solicitors are not entitled to recover their costs in a Summary Sheriff case it will make it difficult for individuals to finance claims and find solicitors to represent them in the lowest tier of the judiciary which unfortunately will create a barrier to justice in these lower value cases. Case 5 The Importance of Advocates in Progressing Court Actions This case concerned a Unison member, employed by Fife Council as an orderly who was injured when opening a roller shutter door at his place of employment on 5 August The roller shutter door measured approximately 20 feet tall in order to allow large vehicles to pass through it. When your member opened the door a cog fell from the mechanism, striking him upon his shoulder. We intimated a claim to his employers on the basis that the accident had occurred as a result of faulty work equipment. Liability was admitted pre-litigation and we obtained a medical report in support of your member s injuries. The claims handlers acting for the Council were not prepared to accept our medical evidence and sought to obtain their own report. Our expert believed your member was suffering from a frozen shoulder, but the Council s expert did not believe this to be the case. The other side were not prepared to put forward a reasonable offer and would only offer 2800 therefore we raised a court action in the Court of Session in order to obtain a fair settlement. Page 10

12 The solicitors acting for the Council made two further formal offers which were not acceptable. Settlement was finally agreed prior to the final court hearing in the sum of 5,600. Your member was extremely happy with the outcome which represented a fair settlement. This is another example of a case which would have been adversely affected by the Courts Reform (Scotland) Bill discussed in the article at Part 4 entitled Courts Reform (Scotland) Bill Access to Justice Restricted for Pursuers. Under the proposed changes cases worth less than 150,000 will not be allowed to be pursued in the Court of Session as they are at the moment. This means than individuals pursuing cases worth less than 150,000 will not have automatic sanction to employ Advocates, QCs and Solicitor Advocates. In this case your member was able to instruct an Advocate and a Solicitor Advocate to help negotiate the best settlement possible. Defenders will likely have the financial ability to continue to instruct Advocates, QCs and Solicitor Advocates which will create an enormous injustice and deny individuals fair access to justice. Page 11

13 PART 4 RECENT DEVELOPMENTS 4.1. Road Traffic Accident Found Not to Be a Crime of Violence for CICA Application The UK Supreme Court has recently ruled that a motorist who was catastrophically injured in a road traffic accident was not a victim of a crime of violence despite the accident being caused by a man committing suicide by running into 6 lanes of oncoming traffic. As a consequence of this ruling the seriously injured driver is not entitled to compensation under the Criminal Injuries Compensation Authority s (CICA) scheme despite being injured through no fault of his own. The accident occurred on January on the A282 which links with the M25 motorway. As a result of an individual running out into the oncoming traffic, in order to commit suicide, there was a collision between other vehicles and one motorist sustained severe injuries resulting in him requiring full time care. Lord Hope, who gave the lead judgment in this case noted that it was not for the Supreme Court to venture too far into the jurisdiction of the specialist CICA tribunals however the decision clearly sets a precedent for other cases where the cause of injury is another person s attempt to commit suicide. Previously injuries sustained in these kinds of cases would give rise to successful compensation claims under the CICA scheme. This case provides the CICA with grounds to reject applications for genuine injury to a person through no fault of their own. As members may be aware the CICA scheme was altered in November 2012 and fewer applications are now successful. Union members should remember however that wherever possible Thompsons can submit applications on their behalf and provide advice and representation throughout the process. Members ought to remember that in any circumstance where they have been a victim of crime it must be reported to the police to ensure that the CICA will deal with the application in the first instance. Page 12

14 4.2. Lead Us Not into Temptation Increased Concerns Regarding Drink Driving Accidents As JD Wetherspoons is set to open its first motorway pub on the M40 at Extra in Beaconsfield, Buckinghamshire road safety campaigners have voiced their concerns regarding road safety and the danger of drink driving. There are currently restrictions in place in relation to the sale of alcohol at service stations and the Government is in consultation regarding the lifting of these restrictions. Allowing the sale of alcohol through a pub style outlet leads drivers to the temptation of drink driving and sends out the wrong message to drivers contradicting previous Government campaigns against drink driving. Wetherspoons believe that the outlet, which is hoped to be the first of many, will be used mostly by coach parties and passengers and not by drivers. However there is still a concern that drunken passengers travelling in coaches and in cars are likely to cause a distraction to sober drivers and accidents could still happen as a consequence of the consumption of alcohol. Road safety charity Brake and the Alcohol Health Alliance have both reinforced the need for extra warnings at service stations to drivers about the risks of drink driving. They say that 23 people in the UK each month are killed and 108 people are seriously injured by drivers who are over the drink-drive limit and no one would wish this figure to increase with the introduction of road side bars. Union members are reminded that should they fall victim to a road traffic accident they and their families have access to Thompsons expert advice in Road Traffic Claims, through their Union's legal scheme. Our specialist department can also arrange a like for like vehicle replacement and recovery service. Page 13

15 4.3. Courts Reform (Scotland) Bill Access to Justice Restricted for Pursuers As Scotland embarks upon the most radical and wide reaching reforms to the civil justice system in recent years questions have been asked about whether or not access to justice for the masses will prevail or whether cost cutting measures will damage an individual s right to civil justice. The Scottish Government has released plans which are intended to modernise the civil court system and improve efficiency. The underlying principle however is to cut costs. These changes can be found in the Courts Reform (Scotland) Bill. Key plans include changing the threshold at which cases can be heard in the Court of Session. At the moment cases where the sum sued for is over 5,000 can be raised in the Court of Session in Edinburgh. This Court is where Scotland s most senior judges decide on cases and only Advocates, Solicitor Advocates and QCs have a right of audience. Under proposed changes this limit is to be changed to 150,000 meaning that all cases under this figure will require to be raised in the Sheriff Court. Unfortunately the Sheriff Court system is currently not set up to decide upon personal injury cases as criminal business takes precedence and waiting times are increasing due to local court closures. Furthermore many personal injury cases involve very complex issues and benefit from being heard by senior judges with significant experience. Moving cases into the Sheriff Court deprives Pursuers of the right to Counsel. This is representation from an Advocate, Solicitor Advocate or QC who are all more senior than a Solicitor. Right to Counsel is automatic in the Court of Session and will be paid for by the losing party however sanction must be sought from the Sheriff in a Sheriff Court case and it is very rarely allowed. Without sanction to employ Counsel an individual pursuing a case will have to fund the cost of an Advocate, Solicitor Advocate or QC themselves. This is a cost which most will not be able to afford. By contrast however big companies and insurers will retain the use of Counsel as their budget will likely allow for this. This creates a clear inequality before the court and prevents fair access to justice. Page 14

16 Furthermore the Courts Reform (Scotland) Bill proposes the introduction of a new post of Summary Sheriff. These Summary Sheriffs will hear less complex and lower value personal injury cases and will be paid significantly less than current Sheriffs. This proposal demonstrates again that the underlying principle of the Courts Reform (Scotland) Bill is cost cutting as cases will be heard before inexperienced Sheriffs who will be required to make decisions in cases which are of low value to the Court but significant value to the individuals pursuing the cases. It has been proposed that in cases before Summary Sheriffs where the value is less than 5,000 individuals will not have automatic sanction for legal assistance. This means that individuals pursuing cases worth less than 5,000 will not be able to recover the cost of their solicitor from the losing party. They will have to pay for their own solicitor which will make it extremely difficult for individuals to afford to pursue low value personal injury cases in court. Most of these cases, whilst low value, are still complex and individuals will find it almost impossible to successfully pursue a claim without legal assistance. Despite the potentially devastating changes to the civil justice system highlighted above the review does recommend the creation of a specialist personal injury court. This is something that if created correctly, and providing sanction for Counsel, could provide the same level of justice as the Court of Session currently provides. The creation of a specialist court is not certain however and its form is not yet clear. Civil Court reform does not come along often and therefore we must make the most of it to ensure that individuals rights continue to be represented and access to justice for all is protected. Thompsons are working closely with the Union to lobby for fair changes which protect individuals rights and ensure equality. Page 15

17 4.4. Case Review: Traditional 6 th Year Pranks Not Foreseeable A janitor employed in a high school has recently lost her case for compensation against her employers in the Court of Session after she slipped and fell on the stairs of her school following an end of year 6 th year prank that went wrong. Mrs Gillie sued her employer, Scottish Borders Council, on the basis that they failed to keep a walkway within her work clear of a substance that could cause her to slip, trip or fall. In this case Vaseline placed on a stairway within the school caused her accident. There was a well established culture within the school for pupils in 6 th year to play pranks and damage school property on the last day of term. In an effort to combat this the head teacher arranged a pupil trip to a theme park for the last day of term which instead meant that pranks occurred on the second last day of term. The Court of Session held that the Council had discharged their duty by taking measures to prevent the pranks by arranging the school trip. It found that the only way to prevent them completely would be to monitor each pupil closely all day and this was not reasonably practicable. The decision in this case is particularly unfair for the janitor who was injured through no fault of her own. The school was aware that pupils intended to play pranks and damage school property and ought to have taken further steps to prevent injury to their staff. Whilst it is easy to look back with hindsight the school management were aware of the dangers posed by the pranks and could, we believe, have foreseen the risks posed to staff by the pupils actions. The Council has a responsibility for the actions of the pupils within their charge. Union members involved in slips, trips or falls at work ought to seek legal advice from Thompsons, through their Union, despite the outcome of this case thereby challenging any employers not fulfilling their duty of care towards their staff. Page 16

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